The dichotomy between consensual and non-consensual based referendums indicates the importance of bringing the power to the people as a source of legitimacy. In practice, on the one hand, a referendum may be held with a clear mandate under a written constitution that promotes legal certainty and predictability.308 However, on the other hand, holding a referendum faces numerous constitutional constraints.309
Referendums may be held without the validity of domestic law; in most cases, these actions are denied by the parent state’s court as being unconstitutional,310 e.g. in Tatarstan, and Catalonia. The court’s prerogative is to maintain the status quo, preserving territorial integrity rather than giving the people a chance to determine their own political status. In the case of Catalonia, the Spanish constitutional court’s judgment (JCC) 103/ 2008311 commented that:
“The key to this case rests on the basis of whether, firstly from a general perspective, an analysis of what should be considered constitutionally as a referendum, and later, and already on a more specific plane, to decide whether what the contested law considers to be a consultation based on the alleged implicit authority of the Autonomous Community of the Basque Country is in
308 There is a consensual action between two governments to agree on holding a referendum. See Allen Buchanan (n 159) 338-
339; Marcelo G. Kohen (n 147) 3
309 Stephen Tierney (n 3) 266-268
310 Anne Peters ‘The Crimean Vote of March 2014 as an Abuse of the Institution of the Territorial Referendum’ (2014)
<http://ssrn/com/abstract=2463536> accessed 16 October 2014
311 Constitutional Court Judgment No. 103/2008 (11 September 2008) (Unofficial translation)
https://www.tribunalconstitucional.es/ResolucionesTraducidas/103-2008,%20of%20September%2011.pdf accessed 15 October 2016; Government of Catalonia, ‘The Process for holding the consultation regarding the political future of Catalonia: an evaluation’ (2 April 2015) p.18
79 reality an authentic referendum although it avoids that term, as if the conclusion were to be reached that it is in effect a referendum, the contested law would be unconstitutional”.312
On this basis, external self-determination practice on independence referendums can be divided into two different types: consensual-based referendums and non- consensual referendums.
2.1 Consensual-based referendums
A consensual-based referendum is where two parties (i.e. state governments) reach an agreement to hold a referendum within the specific provisions of the law,313 for
example, in Eritrea, East Timor, Montenegro, Southern Sudan, and Scotland. From the perspective of international law, when the central government of a state commits itself in advance to respect the will of the people, the latter is a way to balance the territorial integrity of a state.314 In the eyes of the international law, consensual-based referendums conform both politically and legally to the constitution or equivalent instruments, therefore legitimizing the external self-determination process.315
Nonetheless, in practice even though consensual referendums are carried out with the consent of governments, the free and genuine will of the people is contested depending on the context of the protection of the people’s fundamental freedoms (i.e. freedom of expression, movement, or association) and the role of the media and the role of civil society during the process.316
312 Constitutional Court Judgment No. 103/2008 (11 September 2008) (Unofficial translation) (n 311) judgment para4
313 Allen Buchanan, ‘The Quebec secession issue: democracy, minority rights, and the rule of law’ in Stephen Macedo and Allen
Buchanan (eds), Secession and self-determination (New York University Press 2003) 240-241
314 Malcolm MacLaren, ‘ “Trust the People”? Democratic Secessionism and Contemporary Practice’ (2015) 16 German Law
Journal 631, 637-638
315 Allen Buchanan (n 159) 338-339; Marcelo G. Kohen (n 147) 3
316For example, Southern Sudan media censorship and Eritrea human rights protection during decision-making process See The
Carter Center, ‘Observing the 2011 referendum on the self-determination of Southern Sudan final report’ p.24-25; The African- American Institute, Eritrea: A Report on the Referendum on Independence: April 23-25 p.18-20
80 2.2 Non consensual-based Referendums
A non consensual-based referendum is where two governmental parties cannot reach an agreement to hold a referendum,317 for example, Quebec, Slovenia and Catalonia. The organization of the referendum may be achieved by the efforts of a group or section of a state wishing to withdraw from the political and constitutional authority of a larger state and to achieve statehood for a new territorial unit.318 However, the people’s expression of their will may oppose the existing constitution which often prioritizes the indivisibility of a state over respecting the rights of the people.319 However, the legitimacy of non-consensual referendums is based on the recognition of satisfactory human rights protection, including granting political equality between people, guaranteeing fundamental freedoms, and the involvement of media, and civil society during a referendum.
Some fundamental observations will be made about consensual-based referendums and non consensual-based referendums. There are two major factors which have the potential to improve the quality of a referendum: the protection of the fundamental freedom of the people and the involvement of political parties, media and civil societies during any decision-making process. In practice, despite the presence of a constitution, the will of the people in consensual-based referendums can still be limited due to the lack of human rights protection, governmental control over the media’s broadcasting, and restrictions of civil society’s involvement in civic education. On the other hand, the proposal of non-consensual based referendums is
317 Allen Buchanan (n 313) 241-243
318In re Secession Quebec [1998] (n 57) para83; Patrick Dumberry, ‘Lesson Learned from the Quebec Secession Reference
before the Supreme Court of Canada’ in Marcalo G. Kohen, (n 147) 424
319 European Commission for Democracy through Law, Constitutional justice and democracy by referendum (Proceedings of the
81 necessarily contentious, whereby local governments or opposition parties express to the central government that a referendum to assess the will of the people is needed. An example of this is the initiative of the Quebec (federal) government to advocate for a referendum on Quebec secession.320 In addition, non consensual-based referendums rely on greater civil society engagement in civic education and the distribution of information to broad groups of people.321 These elements can reinforce
the free and genuine will of the people as they have access to a range of information. During any decision-making process, if the existing governmental and non- governmental institutions work jointly during a referendum process, this will increase the chances of a credible outcome for the referendum.